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Berta last won the day on June 6

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About Berta

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  1. You also might want to throw in Bradley V Peake as well: https://community.hadit.com/topic/70502-smc-s-and-bradley-vs-peake/ Unfortunately I have based my opinion , that this is a CUE, based solely on what you have stated here. The basis of this type of CUE is that SMC S is an inferred issue, and that it was not' considered 'at all by VA, which is different than being denied for SMC S. "Not considered" means they VA did not even mention SMC at all. I bring this up because , since October 2018 I did something I said I would never do again- A vet had a horrific FTCA situation on line at many new outlets and was desperately trying to find others who had FTCA situations with the VA. I contacted his lawyer, and the lawyer said he would call me back to discuss the issue.. It was the most egregious Violation of VA case law I have ever seen.The lawyer however never called me back but the veteran did get in touch with me---long story , lots of work, lots of time wasted......yesterday his new Bill was posted on the net, I have a similar Bill with the H VAC, these bills are for any veteran or survivor of a veteran,who has received a FTCA settlement or 1151 award, to get proper NPDB notification from the VA.That is the only way future VA negligence and malpractice can stop, from the same doctors, etc, who do not get reported. I asked him 3 times if he got a 1151 award and he somehow never answered until not to long ago-but when I finally got a better picture of what happened,I began to withdraw my help-and started dealing with a vet org guy who understood the case--but did not understand my legal point of view- I found out yesterday, in a new news article, that what the veteran had told me, as to the small payment he got, for the malpractice was not at all a small payment. I have no idea why he didn't tell me the truth, because I had reported this incident to the GAO.It follows what their last GAO report on NPDB shows. It still remains as the worst violation of any veteran's rights I have seen yet. But I learned a lesson AGAIN. The documented facts of a case are everything. When we hear what VA said ,it means nothing- because it is their own documented words that hold their reasons for every decision. I sent out FOIAs to the OGC to get the true facts of the case but probably will not ever get them. I believe very much that those who post here are telling us the facts as they know it. But again I started to opine on the situation Nvet stated, but we have not seen the decision, so I might be all wrong on the CUE I perceive. Nvet- can you scan and attach the decision that did not consider SMC? Cover your C file # name, prior to scanning it. If I am not here, others will help-
  2. Also I have considerable info here on CUE- this might help- but I believe my SMC CUE template is here somewhere too: 1998 decision - an award under 1151 DIC The award clearly noted my dead husband's 100% P & T for SC PTSD, and then noted his residuals from a catastrophic stroke (1151), that added up to 80%. My so called vet rep at the time , told me that since 1151 claims were different he saw nothing I could appeal. The 1151 award resulted from a FTCA settlement (wrongful death) and that horrible ordeal had burned me out .I wanted to be done with the VA. But I re opened my claim for direct SC death in 2003 and that 1998 award still bothered me.I filed CUE this way: The veteran obviously was eligible for SMC, due to his 100% P & T posthumous award for SC PTSD. The veteran's stroke due to all evidence of record was also 100% P & T (1151) and satisfied the 100% plus 60% independent additional disability. The veteran was also housebound, by medical evidence that VA had. Basically from my older PC notes this is what I filed: I know the claim is here somewhere ( but maybe it is on the past hadit board instead- VARO Date - 2004 To whom it may concern: This is a claim of CUE, under auspices of 38 USC, 5109A. I believe that VA erred in the lack of application of 38 USC 1114 regarding the above deceased veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death. The VARO failed to apply VA case law and regulations and failed to consider the deceased veteran properly for accrued Special Monthly Compensation, to my detriment as a surviving spouse of the veteran ((Rodney F. Simmons, date of death October 14, 1994 )and I am still eligible for accrued benefits. The established VA case law and regulations that VA broke are found within: M21-1 Erratum Part IV Change 113 under 3.09 and 3.10. (enclosed) Exhibit A Also within General Counsel Precedent Opinion # 30-97 (enclosed)Exhibit B I have also enclosed an excerpt from the Veterans benefits Manual, from NVLSP in their 2003 Edition. Exhibit C 1998 Erroneous 1151 award (DIC Wrongful death) Exhibit D ( My note here----- The new VBM is so heavy (2,000 pages)I cannot put it on my printer to copy their statement, it is in every VBM, but it makes the point that SMC is mandated by law in every case where it is warranted) Check the M21-1 excerpt as well -I do not believe it has been altered since that last Change.But check M21-1MR to make sure you have the right excerpt to enclose.) The veteran had 100% P & T SC for PTSD, 1997 decision , EED 1991 and in addition to that he was 100% P & T under 1151 for the stroke that VA caused. The stroke ratings are erroneous, and will be part of an additional CUE, but they add up to 80% on the enclosed rating sheet. It is a Clear and Unmistakable error for VA to have disregarded his SMC eligibility in your 1998 decision. He was not only 100% P & T for the stroke,by medical evidence but the point is he had the 100% P & T SC PTSD rating plus the additional independent 1151 80% rating, and was also Housebound by all medical evidence available. Your clear and unmistakable error obviously had a detrimental effect to me, the claimant, as an accrued award was not properly adjudicated and prepared.The award should be SMC S posthumously from August 9, 1992 to October 14, 1994. (That basically is the SMC CUE- you sound like you have the same type of CUE.) Filed 2004, never went to BVA, awarded in 2012 under Nehmer decision for AO IHD. Actually they awarded both HB and 100% plus 60 but only one payment. My last CUE was awarded in 3 weeks.There was no way I was going to wait 8 years again for them to learn how to read. Nehmer put my AO IHD claim into a different VARO , and luckily,recently the VARO sent my pending CUEs to another VARO. I had been aggressively fighting over some phones calls I got from my RO, I think there were 4 in total from the director and some VSO. The director wanted me to buy a ridiculous statement she kept making.And I think , based on the packet I just got, that they threw away some of my evidence.That's OK ,I am used to my RO doing that, and I have copies and also a contact for a Neuro who years ago prepared a C & P exam, and suddenly 7 pages of it turned up, that never came with my original records request.... The exam and its results were done in 1993 and this neuro still works for the VA. I need to contact this doctor because my RO director said was husband had been cured of the 100% stroke when he died.The death certificate, autopsy, Voc Rehab, SSA,AO settlement fund, NYSDHE and VA itself had already declared him 100% P & T, yet she says he was T only and not P-I wonder how many widows whose husband's had 100&% P & T for ten continuous years got that same BS from the director of the Buffalo VARO and their DIC claims were erroneously denied.?????
  3. Buck- I WISH vets could get CHAMPVA, but Tbird is a service connected veteran. CHAMPVA is just for their dependents. You all know that recently the President bolstered the Choice Program up to what it should be. I agree with what you said here-"You being a 100% veteran the VA should put you in a nice electric motorized wheel chair...if your VA Dr will write you up a good detail letter saying it will reduce your pain and make things a lot easier for you to get around VA Should cover the total price of the chair and bring it out to your house...raise hell with them if you have to Your VA" etc. And of course the White House Vets Hot line might be of some help here.1-855-948-2311 I regret you are dealing with so much.But glad you have that Appt.
  4. I agree with Broncovet who said: "My advice is to take your file to an attorney. See if he sees an earlier effective date, and why. You can then decide whether or not to hire him, or to try it alone. " You did file within one year after service and that is good----but there is a lot to this claim... it appears that they disregarded this older statement, when they did SC you for the 70% anxiety: "F. SMR’s show on entrance physical history of treatment for adjustment problems pre-service. Medical report of Dr. _________, shows veteran treated May 30, 80, to December 8, 80, ior adjustment disorder with mixed emotional features. " But that was about 2 years prior to your enlistment? And they did accept you into service. Apparently that 'adjustment disorder' had nothing to do with your actual inservice anxiety,that they finally did award. That is something I would think a lawyer would focus on- and this : ." I had an actual diagnosis for generalized anxiety disorder from the examiner and one other I'm saving for later that a little known law, that changed one month after my claim was final" When was the General Anxiety disorder diagnosed? What is the 'little known law"? The most difficult thing to do with claims like this, is to do exactly what you said- to organize everything, and keep it simple and focused on 38 CFR 3.156 . I don't see the CUE scenario here-and 38 CFR 3.156 would get the same EED results.But a lawyer would have all of the records, and would be able (I hope) to see if CUE occurred. Have you attached here anywhere, their most recent denial, when they said this: " I've argued that 38 C.F.R. 3.156 mandates they reconsider my old claim and award me an EED for 1990 but they won't do it. They're trying to say the anxiety is a new claim and that no old claim exists. "
  5. "I am a 90% Service Connected for multiple ailments to include Sleep Disorder/ Anxiety. " Broncovet, since the VA only pays for one MH issue,, and this vet gets compensation already for an anxiety disorder ( PTSD is an anxiety disorder) I am interested in what advice you give here on how he should file the claim for PTSD.
  6. Solit: this vet succeed on a colitus GWV claim: in part: "In an April 2015 report, a private physician stated that the Veteran had symptoms of diarrhea, fatigue and back pain which are compatible with Gulf War Syndrome. The physician stated that the Veteran’s symptoms started after service in the Gulf War. In a December 2015 report, a private physician reported that the Veteran underwent chronic workup of his chronic diarrhea. The physician noted that as the Veteran was exposed to chemicals during his service in the Gulf War, Gulf War syndrome was suspected. Also, given his psychiatric issues, irritable bowel syndrome was a possible diagnosis. The physician felt that chronic diarrhea may be caused by either illness. In a July 2017 report, a private examiner noted that the Veteran had symptoms of diarrhea, fatigue, muscle and joint pain, and headaches which are compatible with Gulf War Syndrome. The physician related that the symptoms started after service in the Gulf War. In this case, the competent medical evidence of record indicates that the Veteran’s reports of chronic diarrhea have been attributed to colitis, a diagnosed disability. Thus, his complaints of diarrhea cannot be service-connected as being due to an undiagnosed illness. 38 C.F.R. § 3.317. However, the Veteran has consistently reported the onset of diarrhea during his period of active duty which has continued since service discharge and he was ultimately diagnosed as having colitis. Although there is evidence against the claim, the Board places great probative value on the Veteran’s statements regarding the onset and continuity of symptomatology as the Veteran is competent to report about what happened to him during service and his statements are found to be credible. Moreover, private physicians have related the onset of the Veteran’s diarrhea symptoms to his service in the Persian Gulf. Resolving all doubt in favor of the Veteran, based on the foregoing, the Board finds that the Veteran’s colitis began during active service. Service connection for colitis is granted. https://www.va.gov/vetapp18/files9/18133134.txt He had strong medical opinions from private doctors.
  7. An SSDI medical determination is, in essence, an IMO/IME. They made 2 CUEs, in my opinion, both guaranteed to deny the claim. They ignored very probative evidence. If you do decide you need to file CUE ,I will prepare it for you here. Personally I would file the CUE claim, directly with them and also as an IRIS Complaint.(IRIS has a pop down box for complaints and they go to VA Central as well as the VARO). This is a Disgrace. It has happened to me on just about every claim I ever filed, as a survivor.And in spite of their deliberate attempts to ignore my evidence, I won those claims. They even did this to my daughter ( a veteran) and fixed that CUE in 3 weeks, She could not believe how dumb they are ( it was a Chap 35 issue, not a VARO issue) and it revealed that the VA Educational Dept cannot read....either...she had read my ridiculous VARO decisions before she joined the Military but she never expected something as dumb as what she got from VA EDU ( an oxymoron)- and I just said"Welcome to my world". I see bad advice here based on a false premise- sometimes- and it ticks me off---- the advice shows that the member who opined -did not correctly read what the actual post said....or they guessed at what the regulations are... We can't do that- we cannot stoop to the incompetent level of the VA. It is not in this thread- it happened again the other day. I still feel a CUE is in order-but you do have time, and maybe this will get straightened out by the next person who handles the claim. I am very glad you have that SSDI report. I have been asking a neighbor to get a copy of his SSDI report. (asking for over 20 years)They could have made a critical error in his first decision over 20 years ago. He wanted me to file a TDIU claim for him based on what he said the SSDI award was for. I now think it was for a NSC disability. You have the evidence you need and I know how frustrating it is, to have the evidence, and yet have it ignored by the VA.
  8. I need to correct what you stated: "CHAMPVA Eligibility To be eligible for CHAMPVA, you cannot be eligible for TRICARE, and you must be in one of these categories: The spouse or child of a Veteran who has been rated permanently and totally disabled for a service-connected disability by a VA regional office. The surviving spouse or child of a Veteran who died from a VA-rated service-connected disability. The surviving spouse or child of a Veteran who was at the time death rated permanently and totally disabled from a service-connected disability. The surviving spouse or child of a military member who died in the line of duty, not due to misconduct (in most of these cases, these family members are eligible for TRICARE, not CHAMPVA).https://www.va.gov/COMMUNITYCARE/programs/dependents/champva/champva_eligibility.asp I get CHAMPVA under # 1 and # 2. The above site has the application form and more info on CHAMPVA.
  9. "Determination of offshore Notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting the following points: Points Geographic Names Latitude North Longitude East At Hon Nhan Island, Tho Chu Archipelago Kien Giang Province 9°15.0′ 103°27.0′ At Hon Da Island southeast of Hon Khoai Island Minh Hai Province 8°22.8′ 104°52.4′ At Tai Lon Islet, Con Dao Islet in Con Dao-Vung Toa Special Sector 8°37.8′ 106°37.5′ At Bong Lai Islet, Con Dao Islet 8°38.9′ 106°40.3′ At Bay Canh Islet, Con Dao Islet 8°39.7′ 106°42.1′ At Hon Hai Islet (Phu Qui group of islands) Thuan Hai Province 9°58.0′ 109°5.0′ At Hon Doi Islet, Thuan Hai Province 12°39.0′ 109°28.0′ At Dai Lanh point, Phu Khanh Province 12°53.8′ 109°27.2′ At Ong Can Islet, Phu Khanh Province 13°54.0′ 109°21.0′ At Ly Son Islet, Nghia Binh Province 15°23.1′ 109° 9.0′ At Con Co Island, Binh Tri Thien Province 17°10.0′ 107°20.6′ " You can find your ship's coordinates at the very top of the deck Logs. They may have more than one co ordinate as the ship moved. This is important info for any BWN Vet , also you can use Google Earth to understand the baseline in the future regulations. Now is the time to get ready to file the claim.
  10. That is Fantastic News!!!!!!! A DTA Duty to Assist error can be rectified with them using 38 CFR 3.156 C or calling a CUE on themselves. When I won my last CUE, the RO director called me ad apologized to me for not extending my evidence BOD (Benefit of Doubt)- and thn she went on to try to get m to believe that my husband's catastrophic stroke, with 6 areas of brain damage all malpracticed on by VA (FTCA/1151)and had contributed to his death per Death cert and autopsy- was 100% Total but somehow not Permanent. All of my evidence indicates he was Permanent. But my 2 CUE claims were transferred to Minnesota- so now I have a chance to get someone there who can read. (They held back on transferring one CUE claim because it could become an AO presumptive.) My point is that Duty to assist violations, VCAA violations, and Benefit of Doubt violations can be rectified with a valid CUE that is filed on violations of other legal errors, and if the CUE succeeds , everything else they violated becomes Moot.
  11. Kanewnut- sorry I didnt see this sooner- I have limited time here- I went over the downloads- at the "My last VA denial" thread- I think the VA is misinterpreting the SSA award. They do list it as evidence. Do you have anything from the SSA that states it is clearly for the Chronic Adjustment disorder,with mixed emotional features, depressed mood? I assume that you filed for a Higher Level Review due to the March 2019 denial... Has the DAV suggested filing a CUE claim under 38 CFR 4.6 as to the lack of acknowledgement of the VOC Rehab letter? The Cue would be on the first decision, after they got the VOC Rehab letter. I would whip out a CUE here in a heartbeat if I were the DAV VSO you have. I have had success in getting CUEs corrected within the appellate period. I filed one the day after I got a denial, and that claim went from denial to award in 3 weeks. "§ 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." I have used this and others have as well with success, within the appeal period. I think something like this happened-and this could happen to anyone--- when you applied for SSDI did you tell them of the depression and the back problems? When my husband applied for SSDI he listed SC PTSD and NSC stroke. SSA awarded solely for the NSC stroke. He had applied for higher rating of his PTSD (at 30%) yet they (SSA)not consider it at all. I thought they would and that maybe it would help with his comp increase claim. I went to the SSA office, after calling them, asking if I could peruse their means of determining their SSDI awards. They allowed me to read over their SSDI Handbook. It was enormous. But I found what I needed ,after about 2 hours, and they allowed me to xerox some stuff from it. What I found was that they have to consider every disability a claimant lists. They only considered my husband's stroke for the initial award. I got my husband to file for a Reconsideration-actually I did the paperwork, and we went many long miles away to see a SSA lawyer about it. He said we didnt have a chance and would not help us. SSA meantime called my husband and said he could loose his SSDI for the stroke, if they re evaluated him for PTSD. I get inspired by negativity! We filed the recon request, using what I found above from their Handbook, then SSA got all of his VA PTSD stuff, and they called him up a few months later ,and said he had won the reconsideration. After he died that SSDI PTSD award supported a posthumous 100% PTSD P& T rating.Also he had a Voc Rehab statement as well, but due to the stroke.(which I proved was an "as if" SC under Sec 1151, 38 USC.) As soon as the formal new SSDI letter came in the mail,I called up the lawyer who would not help us, and told him he just lost over 4 thousand bucks. ( 1/4 of the PTSD retro from SSA) .H seemed shocked and we had a long talk and he said he would never disregard a PTSD SSA case again. This might have happened to you- whereby you listed your disabilities but SSDI only awarded on the back problems. Or, knowing how illiterate the VA is, they might have never even read the actual SSDI info they requested from SSA. I suggest you copy my reply and email it to your DAV rep-he should really consider a CUE and I can write it for him here ,if needed. CUEs can be filed on denial, awards, and ASAP, WITHIN the appeal period as well as after that year has passed.
  12. "The bill now headed to the president’s desk does go further than the court ruling’s, expanding certain presumptive benefits to troops who served in the Korean Demilitarized Zone and to children of herbicide-exposed Thailand veterans born with spina bifida." https://www.militarytimes.com/news/pentagon-congress/2019/06/12/blue-water-veterans-bill-clears-senate-heads-to-white-house-for-final-signature/ That is more New info- I bet many Blue Waters still have not checked to see if their ship is on the AO ship's list,so that is something, when we get questions about their claims, we need to keep in mind. Advocates have worked on this for at least 15 years....it is almost hard to believe. John Rossie ,disabled Vietnam Vet, never had a dog in this BWN AO fight ,but was relentless in getting BWN vets what they deserve and Carol , after a DIC battle, proved her husband's death was due to AO, by doing a LOT of research. She learned he had been on the COD planes-flying to and from Vietnam so he certainly had Boots on Ground. Nothing is Impossible!!!! Please tell any Blue Water veterans you know (or their survivor)
  13. Now to POTUS! !!!!!!!!!!!!!!!!!!!! HR 299!!!!!! I just got the call . might know more tomorrow, but Now is the time for BWN vets to get their files in order ,and to start filing their claims. No word on Nehmer yet----I have made two wonderful friendships through the BWN saga- John Rossie and Carol Olzanecki- and I expect them to be there when the Bill is signed at the White House! What wonderful news!!!!!!!!!!!!!!! Justice has finally come to our nation's Blue Water Navy veterans- and to their survivors....................Thank God!
  14. If you mean the 646 Certification: " c. Executing VA Form 646 for Remanded Appeals VA must provide an appellant’s accredited representative the opportunity to review the appeal and submit VA Form 646 once all remand actions are complete, and prior to certification to BVA. Important: The appellant’s accredited representative has 10 days to complete and submit VA Form 646. Do not complete certification of the appeal until this time has expired. Note: VA Form 646 is not required when • new evidence was not submitted and additional actions were not required, or • an appeal is remanded by BVA solely for assembly of records, such as X-ray films or outpatient treatment folders. Reference: For more information on review of a remanded appeal by the authorized representative, see M21-1, Part I, 5.G.4.g." http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part1/ch05/M21-1I_5_SecF.doc These take a lot longer than ten days most of the time and VSOs usually just say they agree with the claimant's contentions. It is very rare when the BVA actually even mentions a 646 and only because the vet rep supported the veteran's contentions in some detail. 646s are usually prepared by a VSO who has no real knowledge of the claim, but has an office in or near the VARO. If this is what is delaying the Certification, you might want to put a fire under someones butt- like your VSO...
  15. Another recent BVA award, hereby the Motion for CUE was rendered moot because the BVA found the 1982 claim as still pending! "CUE Assertion in June 22, 1982 RO Rating Decision Denying Service Connection for Cold Injury Residuals Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). For all the reasons discussed above, the June 22, 1982 RO rating decision denying service connection for cold injury residuals of the feet did not become final. Further, in the instant decision, upon de novo review, the Board finds that the RO erred in October 2010 when it assigned an effective date for the grant of service connection for cold injury residuals of the right and left feet of September 15, 2008. As the June 22, 1982 rating decision was non final, and as the Board assigns an effective date of March 1, 1982 for the grant of service connection for cold injury residuals of the right and left feet, the earliest effective date available at law, the Board finds that the CUE motion has been rendered moot, and that dismissal of the CUE motion is warranted. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105(a). https://www.va.gov/vetapp19/files3/19116383.txt
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